Kam Lee Ching v Dato’ Sri Andrew Kam Tai Yeow (WA-12ANCC-25-03/2018)

The Sessions Court had allowed the respondent’s application for summary judgment against the appellant pursuant to O.14 Rules of Court 2012. The appellant is seeking to reverse the decision through this appeal.

I had after considering the affidavits and submissions, allowed the appellant’s appeal. This judgment encapsulates the reasons for the decision. I shall refer to the parties in their capacity in the Sessions Court for convenience. 2

The plaintiff is the paternal aunt of the defendant. The defendant’s father is Tan Sri Dato’ Kam Woon Wah (‘Tan Sri Kam’), the plaintiff’s sister.

The plaintiff’s claim is for RM600,000.00, which she alleged was given to the defendant as a friendly loan. The sum of RM600,000.00 came from the plaintiff’s fixed deposit account.

There was no written agreement. The only documentary evidence produced by the plaintiff in her affidavit in support was an internal funds transfer form from the plaintiff’s bank account to the defendant’s account, and her solicitors’ letter of demand to the defendant.

The defendant did not dispute receiving the sum of RM600,000.00 from the plaintiff. He had of course disputed the plaintiff’s version.

The defendant claimed that the sum of RM600,000.00 was for monies due to him arising out of the profits from the business of Raub Mining & Development Company Sdn Bhd (‘RMDC’) and Raub Oil Mill (‘ROM’), which were remitted to the defendant by Tan Sri Kam. 3 [8] Both the defendant and Tan Sri Kam were shareholders and directors of RMDC and ROM.

The defendant contended that there was an oral agreement between him and Tan Sri Kam sometime in the mid-1980s. He claimed that Tan Sri Kam had promised to divest all his interest in RMDC and ROM, provided the defendant remains on RMDC and ROM’s board of directors, and help to resuscitate RMDC’s business, which was in dire straits then.

The defendant agreed and remained on board. He contended that he is therefore entitled to enjoy the profits generated by these companies.

The defendant and Tan Sri Kam’s relationship however went south. To settle their differences, both parties entered into a shareholders agreement in 2017. Under this agreement, Tan Sri Kam’s 50% shares in RMDC were to be transferred to the defendant, and that the defendant be given an option to purchase Tan Sri Kam’s remaining 50% shares in ROM and RMDC.

The defendant alleged that the sum of RM600,000.00 was part of RMDC and ROM’s profits that Tan Sri Kam had channelled to him through the plaintiff, for reasons best known to his father.

To substantiate this, the defendant related the suit that he had initiated against Tan Sri Kam in the High Court through 4 suit no. WA-22NCC-352-09/2017. His claim pertains to the shareholders agreement.

Tan Sri Kam had in that suit filed a counterclaim against the defendant for the sum of RM58 million, also arising out of the shareholders agreement. The defendant contended that this sum had also included the sum of RM600,000.00, which is now being claimed by the plaintiff against him.

The plaintiff in her brief affidavit in reply merely denied any knowledge of the issues between the defendant and Tan Sri Kam. She reiterated her stand that the loan was pursuant to the defendant’s request, and that the defendant has personal knowledge of it.

Tan Sri Kam however filed an affidavit to support the plaintiff’s claim. He admitted that the sum of RM58 million claimed was inclusive of the plaintiff’s RM600,000.00 claim, but explained that he had merely added it to assist the plaintiff in claiming her RM600,000.00 from the defendant.

In a summary judgment application, the test is simply this: Would the court be able to decide on the issues raised by merely relying on the affidavits and the exhibits? If the issues can only be satisfactorily or fairly decided at a full trial with the advantage of having witnesses testifying, then the application for summary judgment must be dismissed, and 5 the suit set down for trial. A triable issue simply means that the issue must be tried in a trial, and not summarily.

I have no great hesitation to conclude that this suit should not be decided summarily. The plaintiff’s claim is only based on what she claims to be an oral agreement. This may be true, but faced with the defendant’s denial, the court could not possibly determine the veracity of the plaintiff’s claim at this stage.

Averments in affidavits, although taken on oath, cannot be taken at face value, particularly when faced with contradictions with no supporting documents.

The mere fact that the plaintiff could produce bank documents to show the transfer does little to add credence to her claim. Coupled with the defendant’s most unfortunate dispute with his father, namely Tan Sri Kam, it gives a different dimension to the whole issue, which I believe could only be satisfactorily resolved through a trial.

There was an issue raised by the defendant that caught my attention, that if it is true that the sum of RM600,000.00 is included in Tan Sri Kam’s counterclaim of RM58 million for the purpose of assisting the plaintiff to recover the said sum from the defendant, why was it then necessary for the plaintiff to file a suit in the Sessions Court through the same solicitors that acts for Tan Sri Kam in the High Court suit? 6

I am of the view that the issues raised by the defendant can only be determined through a full trial, particularly on the basis for the transfer of RM600,000.00 to him.

I have for these reasons find that the learned had erred in allowing the plaintiff’s claim for summary judgment. The defendant’s appeal is therefore allowed with costs of RM5,000.00. Dated: 14 August 2018. -sgd- (Mohamed Zaini Mazlan) Judge High Court of Malaya (Commercial Division) Kuala Lumpur Counsel for the appellant Mahathir Bin Abdullah [Messrs Mahathir] Counsel for the respondent Tan Swee Poh [Messrs. Y. C. Wong]